SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
FUQUA ENTERPRISES, INC.
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(Name of Issuer)
Common Stock, par value $2.50 per share
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(Title of Class of Securities)
361022-10-6
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(CUSIP Number)
Gene J. Minotto
2935 Northeast Parkway
Atlanta, Georgia 30360
Telephone: (770) 368-4700
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(Name, Address, and Telephone Number of Person Authorized to Receive Notices
and Communications)
September 5, 1997
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(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this statement [ ].
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CUSIP NO. 361022-10-6
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1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Gene J. Minotto
###-##-####
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2. Check the Appropriate Box if a Member of a Group
(a)
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(b)
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3. SEC Use Only
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4. Source of Funds
Not Applicable
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5. Check Box if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e) ________
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6. Citizenship or Place of Organization
United States
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Number of 7. Sole Voting Power 633,333
Shares ---------------------------
Beneficially 8. Shared Voting Power -0-
Owned by ---------------------------
Each Reporting 9. Sole Dispositive Power 633,333
Person ---------------------------
With 10. Shared Dispositive Power -0-
---------------------------
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
633,333
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares _____
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13. Percent of Class Represented by Amount in Row (11)
Approximately 14.0%
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14. Type of Reporting Person
IN
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This Amendment No. 1 ("Amendment No. 1") amends the Schedule 13D, dated
November 20, 1995 (the "Schedule 13D"), of Gene J. Minotto (the "Reporting
Person"), with respect to the common stock, par value $2.50 per share (the
"Common Stock"), of Fuqua Enterprises, Inc., a Delaware corporation (the
"Issuer"), as set forth below.
ITEM 4. PURPOSE OF TRANSACTION.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
The information contained in Items 4 and 6 of the Schedule 13D is
hereby supplemented by the following:
On September 5, 1997, the Issuer entered into an Agreement and Plan of
Merger (the "Merger Agreement") with Graham-Field Health Products, Inc., a
Delaware corporation ("Acquiror"), and GFHP Acquisition Corp., a Delaware
corporation ("Acquiror Sub"), pursuant to which Acquiror Sub will merge with and
into the Issuer (the "Merger"). Assuming the Merger occurs, each issued and
outstanding share of the Common Stock of the Issuer will be converted into
shares of common stock of the Acquiror, as set forth in and subject to the terms
of the Merger Agreement.
In connection with the Merger Agreement, the Reporting Person and the
Acquiror entered into a Voting Agreement, dated as of September 5, 1997 (the
"Voting Agreement"). Pursuant to the Voting Agreement, the Reporting Person has
agreed, subject to various conditions set forth in the Voting Agreement, to vote
all of his shares of the Common Stock of the Issuer in favor of the Merger and
the Merger Agreement and against any other proposal with respect to a merger,
consolidation or other business combination, or any acquisition or similar
transaction involving the purchase of all or any significant portion of the
Issuer's assets or capital stock. The Voting Agreement terminates upon the
earlier to occur of (i) the termination of the Merger Agreement and (ii) the
mutual written agreement of the Reporting Person and the Acquiror. A complete
copy of the Voting Agreement is attached hereto as Exhibit 1 and is incorporated
herein by reference.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
The information contained in Item 5(a)-(b) of the Schedule 13D is
hereby amended as follows:
(a)-(b) The Reporting Person owns of record 600,000 shares of common
stock of the Issuer and owns vested options to acquire an additional 33,333
shares of Common Stock of the Issuer, which 633,333 shares represent, in the
aggregate, approximately 14.0% of the total number of shares of the Issuer's
Common Stock outstanding as of September 5, 1997. The Reporting Person has sole
voting and dispositive rights with respect to such shares.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
The information contained in Item 7 of the Schedule 13D is hereby
amended as follows:
Exhibit 1 Voting Agreement, dated as of September 5, 1997, by and between
Graham-Field Health Products, Inc. and Gene J. Minotto.
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Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: September 8, 1997
/s/ Gene J. Minotto
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GENE J. MINOTTO
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EXHIBIT INDEX
EXHIBIT DESCRIPTION
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1 Voting Agreement, dated as of September 5, 1997, by and between
Graham-Field Health Products, Inc. and Gene J. Minotto.
VOTING AGREEMENT
dated as of September 5, 1997
by and between
GRAHAM-FIELD HEALTH PRODUCTS, INC.
and
GENE J. MINOTTO
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TABLE OF CONTENTS
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This Table of Contents is not part of the Voting Agreement to which it is
attached but is inserted for convenience only.
Page
No.
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ARTICLE I
DEFINITIONS
1.01 Definitions.......................................................... 1
ARTICLE II
TRANSFER OF SHARES
2.01 Restriction on Certain Transfers..................................... 3
ARTICLE III
COVENANTS OF THE STOCKHOLDER IN CONNECTION WITH THE MERGER
3.01 Ownership of Target Shares; Approval of Merger Agreement............. 4
3.02 No Solicitation...................................................... 4
3.03 Director Actions..................................................... 5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
4.01 Authority............................................................ 5
4.02 No Conflicts......................................................... 5
4.03 Governmental Approvals and Filings................................... 6
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
5.01 Incorporation........................................................ 6
5.02 Authority............................................................ 6
5.03 No Conflicts......................................................... 7
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Page
No.
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5.04 Governmental Approvals and Filings................................... 7
ARTICLE VI
GENERAL PROVISIONS
6.01 Survival of Representations, Warranties, Covenants and Agreements.... 7
6.02 Termination.......................................................... 8
6.03 Amendment and Waiver................................................. 8
6.04 Notices ............................................................. 8
6.05 Entire Agreement..................................................... 9
6.06 No Third Party Beneficiary........................................... 9
6.07 No Assignment; Binding Effect........................................ 10
6.08 Specific Performance; Legal Fees..................................... 10
6.09 Headings............................................................. 10
6.10 Invalid Provisions................................................... 10
6.11 Governing Law........................................................ 10
6.12 Consent to Jurisdiction and Service of Process....................... 10
6.13 Counterparts......................................................... 11
SCHEDULE
Schedule I Target Shares Owned by the Stockholder
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This VOTING AGREEMENT dated as of September 5, 1997 is made and entered
into by and between Graham-Field Health Products, Inc., a Delaware corporation
(the "Company"), and Gene J. Minotto (the "Stockholder").
WHEREAS, the Company, GFHP Acquisition Corp., a Delaware corporation
wholly-owned by the Company ("Sub"), and Fuqua Enterprises, Inc., a Delaware
corporation ("Target"), have entered into an Agreement and Plan of Merger of
even date herewith (the "Merger Agreement"), which provides for the merger of
Sub with and into Target and for Target to become a wholly-owned subsidiary of
the Company (the "Merger");
WHEREAS, at the Effective Time (as defined below) and in accordance with
the terms of the Merger Agreement, each share of common stock, par value $2.50
per share, of Target (the "Target Common Stock") will be converted into shares
of common stock, par value $.025 per share, of the Company (the "Company Common
Stock"), all as more fully described in the Merger Agreement;
WHEREAS, the Stockholder owns the number of shares of Target Common Stock
set forth opposite the Stockholder's name on Schedule I hereto; and
WHEREAS, as a condition to the Company's willingness to consummate the
Merger and to the Stockholder's willingness to vote his shares of Target Common
Stock in favor of the Merger, the Stockholder and the Company desire to
establish in this Voting Agreement certain terms and conditions concerning the
voting of the Stockholder's shares of Target Common Stock with respect to the
Merger and the disposition of his shares of Company Common Stock received in the
Merger;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Voting Agreement, and for other good and valuable consideration,
the receipt and
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sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.01 Definitions. (a) Except as otherwise specifically indicated, the
following terms have the following meanings for all purposes of this Voting
Agreement:
"Affiliate" shall have the meaning assigned thereto in Rule 405, as
presently promulgated under the Securities Act.
"beneficially owns" (or comparable variations thereof) has the meaning set
forth in Rule 13d-3 promulgated under the Exchange Act.
"Board of Directors" means the Board of Directors of the Company.
"DGCL" means the General Corporation Law of the State of Delaware.
"Effective Time" means the time at which the Merger becomes effective under
the DGCL.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Governmental or Regulatory Authority" means any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any foreign country or any domestic or foreign state, county,
city or other political subdivision.
"Liens" means any lien, claim, mortgage, encumbrance, pledge, security
interest, equity or charge of any kind.
"Person" means any individual, corporation, partnership, trust, other
entity or group (within the meaning of Section 13(d)(3) of the Exchange Act).
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"Representatives" of the Stockholder means the Stockholder's legal,
investment banking and financial advisors, accountants and any other agents and
representatives.
"Rule 145" means Rule 145 as presently promulgated under the Securities
Act.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Subsidiary" means any Person in which the Company or Target, as the case
may be, directly or indirectly through Subsidiaries or otherwise, beneficially
owns more than fifty percent (50%) of either the equity interest in, or the
Voting Power of, such Person.
(b) In addition, the following terms are defined in the Sections set forth
below:
"Alternative Proposal" -- Section 3.02
"Company" -- Preamble
"Company Common Stock" -- Preamble
"Dispose" or "Disposition" -- Section 2.01(a)
"Merger" -- Preamble
"Merger Agreement" -- Preamble
"Registration Rights Agreement" -- Section 2.01(b)
"Stockholder" -- Preamble
"Sub" -- Preamble
"Target" -- Preamble
"Target Common Stock" -- Preamble
"Target Shares" -- Section 3.01(a)
"Target Stockholders' Meeting" -- Section 3.01(c)
(c) Unless the context of this Voting Agreement otherwise requires, (i)
words of any gender include each other gender; (ii) words using the singular or
plural number also include the plural or singular number, respectively; (iii)
the terms "hereof," "herein," "hereby" and derivative or similar words refer to
this entire Voting Agreement; and (iv) the terms "Article" or "Section" refer to
the specified Article or Section of this Voting Agreement. Whenever this Voting
Agreement refers to a
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number of days, such number shall refer to calendar days unless business days
are specified.
ARTICLE II
TRANSFER OF SHARES
2.01 Restriction on Certain Transfers. (a)Following the Effective Time, the
Stockholder will not assign, sell, pledge, hypothecate or otherwise transfer or
dispose of ("Dispose" or a "Disposition") any shares of Company Common Stock
received by him in the Merger except in compliance with federal and state
securities laws, including without limitation, Rule 145. The certificates
representing the shares of Company Common Stock to be received by the
Stockholder in the Merger in exchange for the certificates representing his
shares of Target Common Stock will not contain any legend, other than any legend
required under Rule 145.
(b) Following the date hereof and prior to the Effective Time, the Company
and the Stockholder will negotiate in good faith such amendments to the terms of
the Registration Rights Agreement dated the 8th day of November, 1995 by and
among Target and the Stockholder (the "Registration Rights Agreement") as may be
necessary in order to make the Registration Rights Agreement applicable to the
shares of Company Common Stock to be received by the Stockholder in the Merger
on a basis consistent, and not in conflict, with registration rights agreements
to which the Company is currently a party, while at the same time preserving, to
the extent practicable, the Stockholder's rights under the Registration Rights
Agreement. Nothing contained in the previous sentence shall require the Company
to obtain any consent or waiver of any other party to any registration rights
agreement to which the Company is currently a party.
ARTICLE III
COVENANTS OF THE STOCKHOLDER IN CONNECTION WITH THE MERGER
3.01 Ownership of Target Shares; Approval of Merger Agreement. (a) The
Stockholder represents and warrants to the
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Company that the Stockholder owns, beneficially and of record, as of the date
hereof, the number of shares of Target Common Stock listed on Schedule I hereto
(collectively, the "Target Shares"), subject to no rights of others and free and
clear of all Liens. The Stockholder's right to vote or Dispose of the Target
Shares is not subject to any voting trust, voting agreement, voting arrangement
or proxy and the Stockholder has not entered into any contract, option or other
arrangement or undertaking with respect thereto.
(b) Until the Effective Time, the Stockholder will not Dispose of any of
the Target Shares or any interest therein, exercise any right of conversion with
respect to the Target Shares, deposit any of the Target Shares into a voting
trust or enter into a voting agreement or arrangement or grant any proxy with
respect thereto or enter into any contract, option or other arrangement or
undertaking with respect to the direct or indirect Disposition of any of the
Target Shares.
(c) The Stockholder will, with respect to those Target Shares that the
Stockholder either owns of record on the record date for voting at any annual or
special meeting of Target stockholders to be held for the purpose of voting on
the adoption of the Merger Agreement or for granting any written consent in
connection with the solicitation of written consents in lieu of such a meeting
(collectively, the "Target Stockholders' Meeting") or with respect to which the
Stockholder otherwise controls the vote, vote or cause to be voted such shares
(or execute written consents with respect to such shares) (i) in favor of the
adoption of the Merger Agreement and the approval of the Merger and the other
transactions contemplated by the Merger Agreement, (ii) against any Alternative
Proposal (as defined in Section 3.02) and (iii) in favor of any other matter
necessary for the consummation of the transactions contemplated by the Merger
Agreement, including without limitation at the Target Stockholders' Meeting.
3.02 No Solicitation. Prior to the Effective Time, and subject to Section
3.03, the Stockholder shall not, and the Stockholder shall use his best efforts
to cause his Affiliates and Representatives not to, initiate, solicit or
encourage, directly or indirectly, any inquiries or the making or implementation
of any proposal or offer (including, without limitation, any proposal or offer
to the stockholders of Target)
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with respect to a merger, consolidation or other business combination including
Target or any of its Subsidiaries or any acquisition or similar transaction
(including, without limitation, a tender or exchange offer) involving the
purchase of all or any significant portion of the assets of Target and its
Subsidiaries taken as a whole or any outstanding shares of the capital stock of
Target or any Subsidiary of Target (any such proposal or offer being hereinafter
referred to as an "Alternative Proposal"), or engage in any negotiations
concerning, or provide any confidential information or data to, or have any
discussions or enter into any agreements, arrangements or understandings,
whether written or oral, with, any Person relating to an Alternative Proposal
(excluding the transactions contemplated by the Merger Agreement), or otherwise
facilitate any effort or attempt to make or implement an Alternative Proposal.
The Stockholder will promptly notify the Company if any such inquiries,
proposals or offers are received by, any such information is requested from, or
any such negotiations or discussions are sought to be initiated or continued
with, him or any of such Persons.
3.03 Director Actions. Notwithstanding any other provision of this Voting
Agreement to the contrary, the covenants and agreements set forth herein shall
not prevent the Stockholder from taking any action, subject to the applicable
provisions of the Merger Agreement, while acting in his capacity as a director
of Target in accordance with his fiduciary duties.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to the Company as follows:
4.01 Authority. This Voting Agreement has been duly and validly executed
and delivered by the Stockholder and constitutes a legal, valid and binding
obligation of the Stockholder enforceable against the Stockholder in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(regardless of
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whether such enforceability is considered in a proceeding in equity or at law).
4.02 No Conflicts. The execution and delivery by the Stockholder of this
Voting Agreement do not, and the performance by the Stockholder of his
obligations under this Voting Agreement and the consummation of the transactions
contemplated hereby will not:
(a) conflict with or result in a violation or breach of any term or
provision of any law, statute, rule or regulation or any order, judgment or
decree of any Governmental or Regulatory Authority applicable to the Stockholder
or any of his properties or assets; or
(b) (i) conflict with or result in a violation or breach of, (ii)
constitute (with or without notice or lapse of time or both) a default under,
(iii) require the Stockholder to obtain any consent, approval or action of, make
any filing with or give any notice to any Person as a result or under the terms
of, or (iv) result in the creation or imposition of any Lien upon any of the
Stockholder's properties or assets under, any contract, agreement, plan, permit
or license to which the Stockholder is a party.
4.03 Governmental Approvals and Filings. No consent, approval or action of,
filing with or notice to any Governmental or Regulatory Authority on the part of
the Stockholder is required in connection with the execution, delivery and
performance of this Voting Agreement or the consummation of the transactions
contemplated hereby, other than filings under the Exchange Act in connection
with the Stockholder's acquisition of Company Common Stock and the other
transactions contemplated hereby and by the Merger Agreement.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Stockholder as follows:
5.01 Incorporation. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware. The
Company has the requisite corporate power and authority to execute and deliver
this Voting Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby.
5.02 Authority. The execution and delivery by the Company of this Voting
Agreement, and the performance by the Company of its obligations hereunder, have
been duly and validly authorized by the Board of Directors of the Company, no
other corporate action on the part of the Company or its stockholders being
necessary. This Voting Agreement has been duly and validly executed and
delivered by the Company and constitutes a legal, valid and binding obligation
of the Company in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
5.03 No Conflicts. The execution and delivery by the Company of this Voting
Agreement do not, and the performance by the Company of its obligations under
this Voting Agreement and the consummation of the transactions contemplated
hereby will not:
(a) conflict with or result in a violation or breach of any of the terms,
conditions or provisions of the certificate of incorporation or bylaws of the
Company;
(b) conflict with or result in a violation or breach of any term or
provision of any law, statute, rule or regulation or any order, judgment or
decree of any Governmental or Regulatory Authority applicable to the Company or
any of its properties or asset; or
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(c) (i) conflict with or result in a violation or breach of, (ii)
constitute (with or without notice or lapse of time or both) a default under,
(iii) require the Company to obtain any consent, approval or action of, make any
filing with or give any notice to any Person as a result or under the terms of,
or (iv) result in the creation or imposition of any Lien upon the Company or any
of its properties or assets under, any contract, agreement, plan, permit or
license to which the Company is a party.
5.04 Governmental Approvals and Filings. No consent, approval or action of,
filing with or notice to any Governmental or Regulatory Authority on the part of
the Company is required in connection with the execution, delivery and
performance of this Stockholders Agreement or the consummation of the
transactions contemplated hereby, other than filings under the Exchange Act in
connection with the Stockholder's voting agreement contained in this Voting
Agreement and the other transactions contemplated hereby and by the Merger
Agreement.
ARTICLE VI
GENERAL PROVISIONS
6.01 Survival of Representations, Warranties, Covenants and Agreements.
Notwithstanding any right of any party (whether or not exercised) to investigate
the accuracy of the representations and warranties of the other party contained
in this Voting Agreement, each party hereto has the right to rely fully upon the
representations and warranties of the other contained in this Voting Agreement.
Except as provided in Section 6.02, the representations, warranties, covenants
and agreements of each party hereto contained in this Voting Agreement will
survive until the termination of this Voting Agreement.
6.02 Termination. This Voting Agreement and all rights and obligations of
the parties hereunder, including, without limitation, the provisions of Section
3.01 and Section 3.02, shall automatically terminate, and shall cease to be of
any further force and effect, upon the earlier to occur of (i) the termination
of the Merger Agreement in accordance with its terms, and (ii) the mutual
written agreement of the Stockholder and the
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Company. Notwithstanding the termination of this Voting Agreement, nothing
contained herein shall relieve any party hereto from liability for breach of any
of his or its representations, warranties, covenants or agreements contained in
this Voting Agreement.
6.03 Amendment and Waiver. (a) This Voting Agreement may be amended,
supplemented or modified only by a written instrument duly executed by or on
behalf of each party hereto.
(b) Any term or condition of this Voting Agreement may be waived at any
time by the party that is entitled to the benefit thereof, but no such waiver
shall be effective unless set forth in a written instrument duly executed by or
on behalf of the party waiving such term or condition. No waiver by any party of
any term or condition of this Voting Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Voting Agreement on any future occasion. All remedies, either
under this Voting Agreement or by law or otherwise afforded, will be cumulative
and not alternative.
6.04 Notices. All notices, requests and other communications hereunder must
be in writing and will be deemed to have been duly given only if delivered
personally or by facsimile transmission or mailed (first class postage prepaid)
to the parties at the following addresses or facsimile numbers:
If to the Stockholder, to:
Mr. Gene J. Minotto
115 Wilderbluff Court
Atlanta, Georgia 30328
Facsimile No.: (770) 368-4701
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with a copy to:
Dow, Lohnes & Albertson
1200 New Hampshire Avenue, N.W.
Suite 800
Washington, D.C. 20036-6802
Facsimile No.: (202) 776-2222
Attn: Edward J. O'Connell, Esq.
If to the Company, to:
Graham-Field Health Products, Inc.
400 Rabro Drive East
Hauppauge, New York 11788
Facsimile No.: (516) 582-5608
Attn: Richard S. Kolodny, Esq.
with a copy to:
Milbank, Tweed, Hadley & McCloy
1 Chase Manhattan Plaza
New York, NY 10005
Facsimile No.: (212) 530-5219
Attn: Robert S. Reder, Esq.
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (iii) if delivered
by mail in the manner described above to the address as provided in this
Section, be deemed given upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
6.05 Entire Agreement. This Voting Agreement supersedes all prior
discussions and agreements between the
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parties hereto with respect to the subject matter hereof, and contains the sole
and entire agreement between the parties hereto with respect to the subject
matter hereof.
6.06 No Third Party Beneficiary. The terms and provisions of this Voting
Agreement are intended solely for the benefit of each party hereto, and it is
not the intention of the parties to confer third-party beneficiary rights upon
any other Person.
6.07 No Assignment; Binding Effect. Neither this Voting Agreement nor any
right, interest or obligation hereunder may be assigned by any party hereto
without the prior written consent of the other party hereto and any attempt to
do so will be void. Subject to the preceding sentence, this Voting Agreement is
binding upon, inures to the benefit of and is enforceable by the parties hereto
and their respective successors and assigns and legal representatives.
6.08 Specific Performance; Legal Fees. The parties acknowledge that money
damages are not an adequate remedy for violations of any provision of this
Voting Agreement and that any party may, in his or its sole discretion, apply to
a court of competent jurisdiction for specific performance for injunctive or
such other relief as such court may deem just and proper in order to enforce any
such provision or prevent any violation hereof and, to the extent permitted by
applicable law, each party waives any objection to the imposition of such
relief. The parties hereto agree that, in the event that any party to this
Voting Agreement shall bring any legal action or proceeding to enforce or to
seek damages or other relief arising from an alleged breach of any term or
provision of this Voting Agreement by the other party, the prevailing party in
any such action or proceeding shall be entitled to an award of, and the other
party to such action or proceeding shall pay, the reasonable fees and expenses
of legal counsel to the prevailing party.
6.09 Headings. The headings used in this Voting Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
6.10 Invalid Provisions. If any provision of this Voting Agreement is held
to be illegal, invalid or unenforceable under any present or future law, and if
the rights or obligations
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of any party hereto under this Voting Agreement will not be materially and
adversely affected thereby, (i) such provision will be fully severable, (ii)
this Voting Agreement will be construed and enforced as if such illegal, invalid
or unenforceable provision had never comprised a part hereof and (iii) the
remaining provisions of this Voting Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.
6.11 Governing Law. Except to the extent that the DGCL is mandatorily
applicable to the rights and obligations of the parties, this Voting Agreement
shall be governed by and construed in accordance with the laws of the State of
New York applicable to a contract executed and performed in such State, without
giving effect to the conflicts of laws principles thereof.
6.12 Consent to Jurisdiction and Service of Process. Each party hereby
irrevocably submits to the exclusive jurisdiction of the United States District
Court for the Southern District of New York or any court of the State of New
York located in the Borough of Manhattan in the City of New York in any action,
suit or proceeding arising in connection with this Voting Agreement, agrees that
any such action, suit or proceeding shall be brought only in such court (and
waives any objection based on forum non conveniens or any other objection to
venue therein to the extent permitted by law), and agrees to delivery of service
of process by any of the methods by which notices may be given pursuant to
Section 6.04, with such service being deemed given as provided in such Section;
provided, however, that such consent to jurisdiction is solely for the purpose
referred to in this Section 6.12 and shall not be deemed to be a general
submission to the jurisdiction of said courts or in the State of New York other
than for such purpose. Nothing herein shall affect the right of any party to
serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the other in any other jurisdiction.
6.13 Counterparts. This Voting Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
13
<PAGE>
IN WITNESS WHEREOF, each party hereto has signed this Voting Agreement, or
caused this Voting Agreement to be signed by its officer thereunto duly
authorized, as of the date first above written.
GRAHAM-FIELD HEALTH PRODUCTS, INC.
By: /s/ Irwin Selinger
------------------------------
Name:
Title:
/s/ Gene J. Minotto
------------------------------
GENE J. MINOTTO
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SCHEDULE I
Target Shares Owned by Stockholder
----------------------------------
Stockholder Number
----------- ------
Gene J. Minotto 700,000
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1 Includes 100,000 shares issuable upon the exercise of outstanding
stock options.
